Constitutional Law

Virginia's gay-marriage ban is struck down


Updated: A federal judge in Norfolk has struck down Virginia’s ban on gay marriage in a case argued by Theodore Olson and David Boies, the same lawyers who won a California gay-marriage case in the U.S. Supreme Court by challenging opponents’ standing.

Judge Arenda Wright Allen ruled on Thursday, overturning the state’s constitutional amendment that bans gay marriage and denies recognition to same-sex marriages performed elsewhere. The Washington Post described her opinion as “sweeping” while the New York Times said it is “the strongest legal reversal yet of restrictive marriage amendments that exist throughout the South.” How Appealing links to the opinion (PDF) and additional coverage.

Wright Allen stayed her decision pending appeal.

Federal judges in Utah and Oklahoma have also overturned state bans on gay marriage. A federal judge in Kentucky, meanwhile, ruled the state must recognize same-sex marriages performed elsewhere.

Wright Allen ruled that the constitutional amendment violates the right to due process and equal protection. “Our Constitution declares that ‘all men’ are created equal,” Allen wrote. “Surely this means all of us.”

The Wall Street Journal Law Blog points out that the statement was an apparent error, if it referenced the U.S. rather than the Virginia Constitution. A revised opinion issued on Friday now reads, “Our Declaration of Independence recognizes that ‘all men’ are created equal.”

Virginia Attorney General Mark Herring announced after taking office that he would not defend the gay-marriage ban. The law was defended by lawyers for two court clerks who issue marriage licenses.

Updated at 10:15 a.m. to include coverage of apparent error in the opinion.

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